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Taking offence is not a matter for the law

By David Leyonhjelm - posted Monday, 26 August 2019


The Racial Discrimination Act makes it unlawful to offend or insult someone based on race, colour or national or ethnic origin. But there are at least another 23 Commonwealth acts which make it an offence to insult or offend a public official or use insulting or offensive language in an official context.

For example, it is an offence to insult a registrar or magistrate in a bankruptcy examination, a member of the Australian Competition Tribunal, the Australian Competition and Consumer Commission, the Australian Energy Regulator, the Copyright Tribunal, a Royal Commission, the Veterans’ Review Board or the Fair Work Commission.

A business name can be refused registration and a person refused inclusion on the electoral roll if their name is deemed offensive, as can an application for a plant breeder’s right with respect to a particular variety. 

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I introduced a bill in the Senate, called the Freedom Of Speech Legislation Amendment (Insult And Offend) Bill 2018, to remove all 23 of these provisions. I limited the bill to insult and offend offences rather than all restrictions on speech for the very good reason that these are subjective terms and, like beauty, found in the eye of the beholder.

That’s not necessarily the case with words that are defamatory, scandalous, obscene, contemptuous, threatening, intimidating, harassing, provocative, molesting, humiliating, intimidating, that incite unlawfulness or are detrimental to the effective operation of a tribunal or official function. Restrictions on these may be justified at times, and they tend to have a meaning that can be determined objectively, independently of the views of the recipient. Insult and offend are purely based on feelings.

In the Australian vernacular, being called a bastard can be intended as a serious insult, a minor criticism or a term of endearment, yet someone may find the term insulting or offensive irrespective of the intent of the person making the comment. Many years ago I observed an English guy take extreme offence at a group of Aussies singing “he’s a bastard, he’s true blue” in appreciation of him supplying them with beer. They meant it as a compliment; he took it as an insult.

Civility towards each other and those in official positions is to be encouraged, but it is not achieved by pretending the law can protect someone from having their feelings hurt. Feeling offended is an emotion, like anger, frustration and loneliness. Emotions can be powerful, but they are not under the control of someone else. Nobody forces us to fall in love or feel happy, sad or disgusted, and yet the law treats offence as if it’s out of our control. If we are responsible for our own feelings in some cases, we must be responsible in all cases.

Even when a comment is intended to be hurtful, or there is indifference as to whether hurt is caused, our response will be determined by our personality and values, not those of others. No matter how bigoted, ill-informed or obnoxious, our reaction to someone else’s words is always up to us. We can feel offended if we wish, but we also have the option of choosing another feeling.

Laws attempting to protect feelings can have significant consequences for the way we speak. Given the inability to know in advance how a recipient might choose to feel, no matter what we might intend, the only safe option is to avoid saying anything much at all.

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That’s why laws seeking to prevent insulting and offensive speech are wrong, even when it concerns the feelings of government officials. Like the rest of us, their feelings are their responsibility.

It is similarly wrong to seek to save us from potentially offensive words by blocking visiting speakers to Australia. No matter how much we might disagree with what someone says, it is up to us whether we find their words offensive. The government is not our mother and we are not children who cannot control our emotions.

My bill has now lapsed as I am no longer in parliament, while all 23 of the laws purporting to protect feelings are still there.  And of course there are plenty of similar state laws that also should not exist.

This issue is at the heart of free speech. I’m hoping there are others who care enough to also take up the cause.

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This article was first published in the Australian Financial Review.



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About the Author

David Leyonhjelm is a former Senator for NSW who is contesting the current New South Wales state election for the LDP.

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